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Washington Wiretapping Law

Washington's wiretapping law is a "two-party consent" law.
Washington makes it a crime to intercept or record a private telephone
call, in-person conversation, or electronic communication unless all parties to the communication consent. See Wash. Rev. Code § 9.73.030(1).
Whether a conversation or other communications is "private" depends on
a number of case-specific factors, such as the subjective intention of
the parties, the reasonableness of their expectation that the
conversation would be private, the location of the conversation, and
whether third parties were present. State v. Townsend, 57 P.3d 255, 259
(Wash. 2002). You should always get the consent of all parties before
recording any conversation that common sense tells you is private.

In Washington, you can satisfy the consent requirement by
"announc[ing] to all other parties engaged in the communication or
conversation, in any reasonably effective manner, that such
communication or conversation is about to be recorded or transmitted,"
so long as this announcement is also recorded. Wash. Rev. Code § 9.73.030(3).
In addition, an employee of a "regularly published newspaper, magazine,
wire service, radio station, or television station acting in the course
of bona fide news gathering duties on a full-time or contractual or
part-time basis" can establish the consent of the party recorded even
without an announcement if he or she uses a recording or transmitting
device that is "readily apparent or obvious to the speakers." Wash. Rev. Code § 9.73.030(4).

The language of this consent provision suggests that it probably does
not apply to an employee of an online publication or a non-professional journalist who is not employed by a media outlet on a full-time,
part-time, or contractual basis. This limitation may be of little
importance, however, because Washington courts have held -- in a
non-media context -- that a person will be deemed to have consented to
having his or her communication recorded when he or she conveys a
message knowing that it will be recorded. See In re Marriage of Farr,
940 P.2d 679 (Wash. App. 1997) (speaker consented when leaving a
message on a telephone answering machine, the only function of which is
to record messages); Townsend, 57 P.3d at 260 (person sending email
consented to its recording because he "had to understand that computers
are, among other things, a message recording device and that his e-mail
messages would be recorded on the computer of the person to whom the
message was sent").

In addition to subjecting you to criminal prosecution,
violating the wiretapping law can expose you to a civil lawsuit for
damages by an injured party. See Wash. Rev. Code § 9.73.060.

Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Washington for more information on Washington wiretapping law.

Washington Law on Recording Court Hearings and Public Meetings

Court Hearings

Washington state courts generally permit the use of recording
devices in the courtroom, although the presiding judge must give
express permission before recording and may impose limitations when it
would be distracting to the participants or impair the dignity of the
proceedings. In 1963, Washington State lawyers, judges, and members of
the press formed the Bench-Bar-Press Committee, which seeks to foster better relationships between the bench and the press. The Committee publishes an annual report that may be of interest.

Federal courts in Washington are part of the Ninth Circuit. In
Ninth Circuit appellate proceedings, cameras and recording devices are
permitted at the discretion of the presiding panel of judges. To get
permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom
three days in advance, although the panel can waive the advance notice
requirement. Recording devices and cameras generally are prohibited in
federal district courts in Washington.

Washington law allows you to use sound and video recording
devices at public meetings (i.e., meetings of a governmental body
required to be open to the public by law), unless they disrupt the
orderly conduct of the meeting.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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